Xing Chen v. Atty Gen USA

Filing 3010141975

Case: 09-1951

Document: 003110141975

Page: 1

Date Filed: 05/13/2010

IMG-200

N O T PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 09-1951 ___________ X IN G CHEN, Petitioner v. A T T O R N E Y GENERAL OF THE UNITED STATES, Respondent ____________________________________ O n Petition for Review of an Order of the B o a rd of Immigration Appeals (A g e n c y No. A99 673 054) I m m ig r a tio n Judge: Honorable Eugene Pugliese ____________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) M a y 12, 2010 B e f o r e : RENDELL, FISHER and GARTH, Circuit Judges. (F ile d : May 13, 2010) ___________ O P IN IO N ___________

P E R CURIAM

Case: 09-1951

Document: 003110141975

Page: 2

Date Filed: 05/13/2010

X in g Chen petitions for review of a Board of Immigration Appeals ("BIA") d e c isio n dismissing his appeal of an Immigration Judge's ("IJ") decision denying his a p p lic a tio n s for relief from removal. We will deny the petition for review. C h e n is a native and citizen of China from Fujian Province. He arrived in the U n ite d States in July 2006, when he was nineteen years old. Shortly thereafter, a notice to appear was issued charging that Chen was subject to removal because he was present in the United States without having been admitted or paroled. Through counsel, Chen c o n c ed e d that he is removable as charged. He applied for asylum, withholding of rem o v al, and protection under the Convention Against Torture ("CAT"). C h e n testified that he left China because the police detained and tortured him on A p ril 16, 2006. Chen explained that on that date he attended a private gathering of C h ristian s at the home of Sister Lu for the Easter holiday. He stated that there were more th a n twelve people there and that they read the bible and sang. The police knocked at the d o o r and more than twelve officers came inside. The police stated that someone had re p o rte d that they were gathering there illegally for Christian activities. The police told e v e r yo n e to stand aside, searched the home, and took away the bibles. C h e n stated that the police took everyone to the police station for interrogation. Three officers took Chen to a small room and asked him to write down his personal in f o rm a tio n and the name of the leader of the activities. Chen told the police that they did n o t do anything wrong and that they voluntarily took part in the activities. Chen testified

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Case: 09-1951

Document: 003110141975

Page: 3

Date Filed: 05/13/2010

th a t an officer then punched him in the stomach and another officer hit his shoulder with a stick. The police kicked him and continued to ask him to identify the leader. C h e n testified that he was detained for two days and that, in order to be released, h e signed a letter stating that he would not participate in the gatherings anymore or c o n ta c t religious organizations. Chen was required to report to the police each month. The police called Chen's school and the school did not allow him to return. O n cross-examination, Chen testified that he had gathered with the same twelve p e o p le every Sunday from September 2005 until April 16, 2006, but he did not know their n a m e s because they referred to each other as brother and sister. Chen also stated that he w a s bruised after the police detained him but did not seek medical treatment. T h e IJ did not find Chen's testimony persuasive. The IJ explained that Chen's d e m e a n o r suggested that he did not have firm convictions and that his answers were often s h o rt or non-responsive. The IJ also noted that Chen had submitted a form letter from a c h u rc h in New York confirming his attendance, but that no one had written a personal le tte r on his behalf. Based on the vague and imprecise testimony, the IJ made an adverse c re d ib ility finding. The IJ also relied on contradictions between Chen's testimony and w ritte n statement, noting that he testified that he did not know the names of the people at th e religious gatherings but he wrote that he had been introduced to everyone. The IJ also n o te d a minor inconsistency, in that Chen testified that there were more than a dozen

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Case: 09-1951

Document: 003110141975

Page: 4

Date Filed: 05/13/2010

p eo p le at Sister Lu's house on April 16, 2006, but he wrote in his statement that there w e re "10 something people." T h e IJ further stated that Chen's credibility was undermined by the 2007 U.S. D e p a rtm e n t of State Profile of Asylum Claims and Country Conditions, which provides th a t local authorities quietly tolerated house churches and prayer meetings as long as they re m a in e d small and unobtrusive. The IJ noted that the situation described by Chen did n o t appear to be one that authorities would have responded to in the way that he testified. As a result of the adverse credibility finding, the IJ concluded that Chen had not met his b u rd e n of proof on any of his applications for relief from removal. T h e BIA found no clear error in the IJ's adverse credibility finding and dismissed C h e n 's appeal. Like the IJ, the BIA noted that Chen testified that he did not know the n a m e s of the other people attending the weekly meetings at Sister Lu's home, but his w ritte n statement provided that he was introduced to everyone there. The BIA further n o te d that when Chen was asked why he was not fined when some of the other church a tte n d e es were fined, Chen seemed unaware that he had written in his statement that other a tte n d e es were fined. This petition for review followed. W e review the agency's factual findings, including adverse credibility findings, for su b sta n tial evidence. Chen v. Att'y Gen., 434 F.3d 212, 216 (3d Cir. 2005). Under this s ta n d a rd of review, we will uphold the agency's findings unless a reasonable adjudicator w o u ld be compelled to conclude to the contrary. Id. Chen's applications for relief are

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Case: 09-1951

Document: 003110141975

Page: 5

Date Filed: 05/13/2010

g o v e rn e d by the Real ID Act, under which a credibility determination may be based on an a lie n 's demeanor and responsiveness, the plausibility of the alien's account, and inco n sisten cies in the evidence, regardless of whether the inconsistencies go to the heart o f the alien's claim. 8 U.S.C. § 1158(b)(1)(B)(iii). C h e n argues that the BIA erred in upholding the adverse credibility determination w h e r e he had trouble understanding the Government's misleading questions during crosse x a m in a tio n . Chen points to questions by the Government regarding his knowledge of re lig io n , whether he knew where he could buy a bible, and whether he had seen before the p e o p le present at Sister Lu's house on April 16, 2006. As noted by the Government, c o u n se l did not object to the nature of the questions at the hearing. In addition, Chen tes tifie d that he initially incorrectly answered the question whether he had seen the people a t Sister Lu's before because he was nervous, not because he was misled. The IJ also did n o t rely on Chen's knowledge of Christianity in finding him not credible. To the c o n tra ry, the IJ stated that knowledge of the tenets of a religion is not required. Chen has n o t shown that the BIA erred on this basis. C h e n also argues that the IJ erred in concluding that he lacks spirituality and in s ta tin g that he had no fervor or passion in his testimony. Chen argues that he was not a sk e d how his beliefs changed his spirituality and asserts that the IJ's reasoning in this re g a rd is speculative. In concluding that Chen's presentation was not very compelling, th e IJ noted that he did not get the impression that Chen had any particular spirituality

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Case: 09-1951

Document: 003110141975

Page: 6

Date Filed: 05/13/2010

reg ard ing his religion and that he did not detect any fervor or passion in Chen's testim o n y. The IJ further noted that Chen's demeanor did not suggest that he had firm c o n v ic tio n s , that he gazed downward while testifying, and that he gave short and nonre sp o n siv e answers to questions. A high degree of deference is given to a reasonable a d v e rs e inference drawn from an alien's demeanor. Dia v. Ashcroft, 353 F.3d 228, 252 n .2 3 (3d Cir. 2003) (en banc). Even if the IJ may have erred in concluding that Chen la c k ed any spirituality, the IJ did not err in relying on the manner of Chen's presentation to support the adverse credibility determination. F in a lly, Chen argues that the IJ erred in finding his written statement and te stim o n y inconsistent as to whether he knew the names of the people who gathered at S is te r Lu's house. Chen contends that his written statement only provides that he was in tro d u c e d to the people at the house, not that the others introduced themselves by name. Chen also argues that the inconsistency between his statement and testimony as to the n u m b e r of persons present was minor. As to the latter argument, the IJ acknowledged th a t this inconsistency was minor and stated he did "not want to make too much of it." IJ's Dec. at 10. We also find no error in the reliance on Chen's testimony that he did not k n o w the names of the other persons at the house to support the adverse credibility f in d in g , where Chen stated that he was introduced to everyone on September 25, 2005,

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Case: 09-1951

Document: 003110141975

Page: 7

Date Filed: 05/13/2010

a n d that he attended weekly meetings with these individuals until April 16, 2006. Chen h a s not shown that the evidence compels a contrary conclusion. A c c o rd in g ly, we will deny the petition for review.

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